dismissed EB-2 NIW Case: Medical Oncology

(b)(6)
DATE: Office: TEXAS SERVICE CENTER 
MAR 1 9 2014 
INRE: 
U.S. De.partment of Homeland Security 
U.S. Citiz enship and Immi gration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W ., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C . § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision . The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen , respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:Uwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~(zs= 
Ron Rosenberg ~!'--
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition. The 
Administrative Appeals Office (AAO) dismissed the petitioner's appeal. Subsequently, the petitioner 
filed a motion to reopen and reconsider. The AAO dismissed the motion to reconsider, granted the 
motion to reopen, and affirmed its prior decision. The petitioner filed a second motion to reopen. The 
AAO granted the motion and affirmed the dismissal of the appeal. The petitioner filed a third motion 
to reopen. The AAO dismissed the motion and affirmed its prior decision. The petitioner then filed a 
fourth motion to reopen. The AAO granted the motion to reopen and affirmed its prior decision. The 
matter is now before the AAO again on a fifth motion to reopen. The motion will be granted, the 
previous decision of the AAO will be affirmed, and the petition will remain denied. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in the sciences and as a member of 
the professions holding an advanced degree. According to parts 5 and 6 of the Form I-140, Immigrant 
Petition for Alien Worker, the petitioner identified his intended occupation as "physician, " and his job 
title as "physician , surgeon, osteopath." After completing his resident and fellowship training at ~ 
. , the petitioner began his current employment at University of 
_ The petitioner asserts that an exemption from the requirement of 
a job offer, and thus of a labor certification, is in the national interest of the United States. The director 
found that the petitioner qualified for classification as a member of the professions holding an advanced 
degree, but that the petitioner had not established that an exemption from the requirement of a job offer 
would be in the national interest of the United States. 
According to 8 C.P.R. § 103.5(a)(2), a motion to reopen must state the new facts to be provided in the 
reopened proceeding and be supported by affidavits or other documentary evidence. Motions for the 
reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing 
and motions for a new trial on the basis of newly discovered evidence. INS v. Doherty, 502 U.S. 314, 
323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a 
"heavy burden." INS v. Abudu, 485 U.S. at 110. 
In reNew York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT) , has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that he seeks employment in an area of 
substantial intrinsic merit. !d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. !d. Finally, the petitioner seeking the waiver must establish that he will serve the 
national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications . !d. at 217-18. 
The petitioner filed the Form I-140 petitiOn on June 23, 2010. The director found that the 
petitioner 's work as a physician in the field of medical oncology was in an area of substantial 
intrinsic merit. However, the director, in denying the petition, determined that the petitioner had not 
established that the benefit arising from his intended future employment would be national in scope. 
1 
In his August 18, 2012 letter supporting one of the previous motions, counsel references the petitioner's employment at 
as training. The petitioner's curriculum vitae supporting the initial filing indicated that 
he was still employed at J as a fellow and references to subsequent employment post -date 
the petition's filing date. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
The director concluded that the petitioner's "impact will be limited to the hospital in which he will 
practice; therefore, the benefit of his skills will be limited to a small area." The director also 
determined that the petitioner had not established that he would benefit the national interest to a 
greater extent than an available U.S. worker with the same minimum qualifications. The AAO's 
precious decisions have upheld the director's findings. 
In the AAO's most recent decision, the AAO again determined the petitioner had failed to establish 
that the benefits of his work would be national in scope and that he would benefit the national 
interest to a greater extent than an available U.S. worker with the same minimum qualifications. 
With the current motion, the petitioner submits a letter from counsel contesting the AAO's previous 
decision and an article the petitioner coauthored in . - -~ -- ·--- ' · " The 
-
journal posted the article online on December 6, 2013. 
2013 letter fwm 
of the Board of Directors of the 
Finally, the petitioner submits a November 19, 
, stating: "On behalf 
it gives me great pleasure to inform you that 
was approved for funding for FY2014. The total amount of funding allocated is 
$5,000 and the term will be December 1, 2013- June 1, 2014." 
Counsel asserts that the article in and the $5,000 grant from the 
show that the petitioner's work is national in scope and that the national interest 
would be adversely affected if alien employment certification were required for the petitioner. Counsel 
asserts that the petitioner "could not reasonably be expected to submit evidence on work which had not 
been performed or completed at the time of his previous filings." The publication of the petitioner's 
article in . _ _ _ - · post-
date the filing of the Form 1-140 petition on June 23, 2010. Eligibility, however, must be established 
at the time of filing. 8 C.P.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l 
Comm'r 1971). A petition cannot be approved at a future date after the petitioner becomes eligible 
under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision 
further provides , citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot 
"consider facts that come into being only subsequent to the filing of a petition." !d. at 176. 
In this matter, demonstrating eligibility at the time of filing means that the petitioner must 
demonstrate a past history of achievement with some degree of influence on the field as a whole as 
of that date. NYSDOT at 219, n.6. All of the case law relating to eligibility at the time of filing 
focuses on the policy of preventing petitioners from securing a priority date in the hope that they will 
subsequently be able to demonstrate eligibility. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 
(Reg' I Comrn'r 1977); Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Act. Reg' I Comm 'r 1977); 
Matter of Katigbak, 14 I&N Dec. at 49. Consistent with these decisions, a petitioner seeking a waiver 
of the job offer requirement in the national interest cannot secure a priority date in the hope that his 
as of yet unpublished research will subsequently not only appear in print but also prove influential 
upon dissemination in the field. Accordingly, the published article in 
and the $5,000 grant from the cannot be considered as evidence to establish 
the petitioner's eligibility at the time of filing. 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
Regardless, there is no documentary evidence showing that, even upon dissemination in the field, the 
petitioner's research findings in, ~ _ have influenced the field as a whole. 
For example, the record contains no evidence of citations to this article or other comparable evidence of 
its application in the field. With regard to the third prong of the national interest waiver test, the 
petitioner must demonstrate "a past history of demonstrable achievement with some degree of 
influence on the field as a whole." NYSDOT at 219, n. 6. Furthermore, regarding the petitioner's 
~- ,- __ o·---- ____________ .. _ ---·--· -----------~-, a variety of public and private sources are 
responsible for funding a substantial amount of medical research. Every research project, of which 
there are hundreds of thousands, receives funding from somewhere. The past achievements of the 
principal investigator are a factor in grant proposals because the funding institution has to be assured 
that the investigator is capable of performing the proposed research. Nevertheless, the ability to 
secure funding for a research project does not differentiate the petitioner from other capable medical 
researchers, or demonstrate that his work has already influenced the field as a whole. 
The documentation submitted by the petitioner on motion does not overcome the AAO's previous 
findings. The petitioner has not submitted evidence establishing that the work he was engaged in or had 
completed at the time of filing on June 23, 2010 had benefits that were national in scope. In addition, 
the petitioner has failed to demonstrate that his work had already influenced the field as a whole at 
the time of filing or even as of the date the petitioner filed the current motion. On the basis of the 
evidence submitted, the petitioner has not established that 
a waiver of the requirement of an approved 
labor certification will be in the national interest of the United States. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The AAO's January 9, 2014 decision is affirmed. The petition will remain denied.